McCreary Tort Outline 2011

Intentional Torts
All elements must be proven to be more likely than not

1. Battery An actor must intend to cause a contact that is harmful or offensive and have the contact occur and the harmful or offensive contact actually occur A. Elements 1. Act D must intend the act that produced the harmful or offensive contact Act Any manifestation of the actors will, a movement or a failure to move Not an Act Reflexes, Convulsions, and things done while unconscious are not acts 2. Intent (single) (subjective test what the D desired or knew) D must intend to cause a contact that is harmful or offensive - An actor must desire the contact or be substantially certain that the contact will occur Transfer of Intent Between Torts Allows a P who suffers h or o contact to recover for battery even if D intended only an assault, and allows a P to recover who suffers apprehension of imminent h or o contact to recover for an assault even if the D intended a battery Transfer of Intent Between People D is liable if the tort happens to person B, even if he intended it to affect A Dual Intent (minority) D must intend the act AND intend that is be harmful or offensive 3. Harmful or Offensive Contact Occurs Harmful or Offensive This is determined by what a reasonable person would consider harmful or offensive contact under those specific circumstances Injury Any invasion of the legally protected interest of another Harm The loss or detriment to the person that occurs Offensive (objective) Conduct which would offend a reasonable person - In cases of people with unusual sensibilities, those sensibilities must have been communicated to the D - any physical impairment of the persons body will do including sickness Contact A battery without assault may occur if the actor does not perceive the contact Direct Contact may be from person to person Indirect Contact can be substantiated when the D sets a series of events in motion that end up causing the contact such as blowing cigar smoke or firing a gun B. Application - If the battery occurs, P may recover for all consequences of that battery even if they were unforeseeable Types of Damages Compensatory Award for harms suffered Nominal Usually awarded when P suffers and injury but no harm Punitive Damages meant to punish the D for stupid behavior De Minimis non Curat Lex A doctrine that says the law will not involve itself in others trifling interest, used when somebody makes a huge deal out of something like a poke or a tap

C. Defenses/Exceptions 1. Consent (objective test) Occurs where a person relinquishes their right to be free from contact or apprehension of contact Consent Must Be Knowing Express Saying that you consent to that specific contact Implied Allowing someone to infer you consent to that specific contact through your actions Informed - Once an actor consents to a specific contact, he cannot recover for any harms resulting from that specific contact no matter how unforeseeable Voluntary Fraudulent Consent D will be barred from consent if they obtained it fraudulently from the P Mistaken Consent D will be barred from consent if they concealed an important fact that would have affected the Ps consent - To withdraw consent you must make it known to the parties involved 2. In Defense of Self Proportionality Force must be proportional to a) the interest the actor is protecting AND b) the injury or harm likely to be caused or intended to be caused by the other person - One may use deadly threat to prevent serious bodily harm Perception of Threat (objective test) The actor must fear bodily harm WHERE a reasonable person would have feared bodily harm Restatement 65 Says that if a retreat is reasonably available then you must retreat unless (castle doctrine) you are attacked in your home, then blast away Castle Doctrine Says that you can stand your ground 3. Defense of Others One may use the same degree of force to protect other as they would themselves Proportionality Force must be proportional to a) the interest the actor is protecting AND b) the injury or harm threatened by the other person - One may use deadly force to prevent serious bodily harm Perception of Threat (objective test) You take the scene as you see it, actor must perceive a threat to the P as must a reasonable person when taking the scene as they see it 4. Defense of Land and Personal Property Proportionality Force must be proportional to a) real and personal property (but not chattels) AND b) the injury or harm threatened by the other person - because the law favors life over land, there is less of a justification for protecting property Reasonable Force to eject Trespassers (minority) In cases where there is just a trespasser and no harm is threatened you can still use reasonable force to get them to leave

2. Assault An actor must intend to cause a reasonable apprehension of imminent harmful or offensive contact to another A. Elements 1. Act D must intend the act that caused the reasonable apprehension of harmful or offensive contact 2. Intent Actor must intend imminent apprehension or be substantially certain imminent apprehension could occur Transfer of Intent Between Torts Allows a P who suffers h or o contact to recover for battery even if D intended only an assault, and allows a P to recover who suffers apprehension of imminent h or o contact to recover for an assault even if the D intended a battery Transfer of Intent Between People D is liable if the tort happens to person B, even if he intended it to affect A 3. Reasonable Apprehension Anticipation of harm would be aroused in the mind of a reasonable person - In cases of people with unusual sensibilities or people that frighten easily, the D will be liable for whatever damages occur - Do not confuse fear with apprehension 4. Imminent Must be expected immediately - Threats of future harm do not count 5. Harmful or Offensive Contact Amounts to an invasion of the Ps peace of mind by causing apprehension of contact B. Application 1. Transferred Intent C. Defenses/Exceptions 1. Consent (objective test) Occurs where a person relinquishes their right to be free from contact or apprehension of contact Consent Must Be Knowing Express Saying that you consent to that specific contact Implied Allowing someone to infer you consent to that specific contact through your actions Informed - Once an actor consents to a specific contact, he cannot recover for any harms resulting from that specific contact no matter how unforeseeable Voluntary Fraudulent Consent D will be barred from consent if they obtained it fraudulently from the P Mistaken Consent D will be barred from consent if they concealed an important fact that would have affected the Ps consent - To withdraw consent you must make it known to the parties involved 2. In Defense of Self Proportionality Force must be proportional to a) the interest the actor is protecting AND b) the injury or harm likely to be caused or intended to be caused by the other person - One may use deadly threat to prevent serious bodily harm Perception of Threat (objective test) The actor must fear bodily harm WHERE a reasonable person would have feared bodily harm Restatement 65

Says that if a retreat is reasonably available then you must retreat unless (castle doctrine) you are attacked in your home, then blast away Castle Doctrine Says that you can stand your ground 3. Defense of Others One may use the same degree of force to protect other as they would themselves Proportionality Force must be proportional to a) the interest the actor is protecting AND b) the injury or harm threatened by the other person - One may use deadly force to prevent serious bodily harm Perception of Threat (objective test) You take the scene as you see it, actor must perceive a threat to the P as must a reasonable person when taking the scene as they see it 4. Defense of Land and Personal Property Proportionality Force must be proportional to a) real and personal property (but not chattels) AND b) the injury or harm threatened by the other person - because the law favors life over land, there is less of a justification for protecting property Reasonable Force to eject Trespassers (minority) In cases where there is just a trespasser and no harm is threatened you can still use reasonable force to get them to leave

3. Intentional Infliction Of Emotional Distress protects a persons right to be free from serious emotional stress A. Elements 1. Act(s) (objective test) Conduct of P must be considered OUTRAGEOUS! by a reasonable person - A P with peculiar sensitivities may not recover unless the actor had prior knowledge of those sensitivities and continued anyway - Conduct that would otherwise not be outrageous might appear outrageous if one party has power over another Factors to Consider - is it utterly intolerable? - is it beyond all bounds of decency? 2. Intent D must intentionally or recklessly cause the Ps distress - this includes purposely causing the stress or being unaware that the stress was being caused when you should have been 3. Causation The D must have been the cause of the conduct 4. The Distress P is suffering must be show to be severe (objective test) The stress must be so severe that a reasonable man could not be expected to endure it - Usually proven by expert testimony but expert testimony is not necessary for majority jurisdictions - stress must be severe so everybody doesnt claim it in court Types of Emotional Distress - fright, horror, grief, shame, embarrasment, anger, humiliation, disappointment, worry Factors to Consider - physcical manifestations of distress - subjective testimony - expert testimony B. Application 1. Transferred Intent for Family Members

In order for intent to transfer in IIED a) the family members must have present during the distress AND b) must not be the intended target 2. Transferred Intent for Non-Family Members a) must have been present during IIED b) must not be the intended target of the distress c) must have inflicted bodily harm C. Defenses/Exceptions

5. False Imprisonment The intentional confinement of a P with no reasonable means of escape A. Elements 1. Act(s) D must intend the act 2. Intent D must intend the confinement Confinement - You must be aware that you are confined 3. No Reasonable Means of Escape (objective test) You must have no reasonable means of escape or you are not confined B. Defenses/Exceptions Shopkeepers Rule A person can be detained by a shopkeeper if suspected from stealing. The detainment must be in a reasonable manner for a reasonable time on the property of the shop. 6. Trespass To Land Unauthorized entry onto the land of another A. Elements 1. Act The act of entering the land - Act must be voluntary - Leaving something on the land or causing something to enter the land counts. such as noise, dust, oil, bull-shit - Dust and particles would likely count as trespass if there was enough of it 2. Intent Actor must desire to enter the land, or be substantially certain that their act would lead to an entry - Demonstrated by a desire to enter - You cannot reck/neg enter land - mistake that you thought the land was yours is not a defense - mistake that you thought you had permission is not a defense Transferred Intent Third parties are liable when they P or K cause a person to be on anothers land B. Privileges/Defenses/Exceptions 1. Necessity A person may, in times of necessity, interfere with anothers right to exclusive possession of real or personal property - However, compensatory damages are available when a person causes damage while on the property - If A uses necessity when possessing Bs property and the LL refuses to allow B to use it, the LL will be liable for damages to B - necessity privilege prevents a D from being liable for nominal and punitive damages Public Necessity Public necessity arises when there is a risk to the property of a sufficiently large number of people to make the risk public and that risk can be reduced or eliminated by damaging or destroying the property of the plaintiff. Private Necessity Private necessity arises when there is a risk to one party or his property only, and this party can reduce or eliminate that risk by damaging or destroying someone elses property. C. Remedies - punitive, nominal, compensatory

7. Trespass To Chattels the intentional use or intermeddling with a chattel in possession of another and the chattel is impaired as to its condition, quality, or value. A. Elements One who commits a trespass to a chattel is liable IF (a) he dispossesses the other of a chattel OR - takes w/o consent - obtains by fraud or duress - bars possessor access to a chattel (b) the chattel is impaired as to its condition, quality, or value OR (c) the possessor is deprived of the use of a chattel for a substantial time OR (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest B. Defenses/Exceptions 1. Necessity A person may enter the land of another when they have a necessity to do so but will still be responsible for damages Public Necessity Public necessity arises when there is a risk to the property of a sufficiently large number of people to make the risk public and that risk can be reduced or eliminated by damaging or destroying the property of the plaintiff. Private Necessity Therefore, private necessity arises when there is a risk to one party or his property only, and this party can reduce or eliminate that risk by damaging or destroying someone elses property. C. Remedies - nominal damages - compensatory damages Factors to Consider is Deciding Whether the Possession was a TTC or a Conversion a) extent and duration of the actors control b) actors intent c) actors good faith in taking the chattel d) amount of interference that occurred by dispossessing the chattel e) the harm done to the chattel f) the inconvenience and expense caused by the dispossession

8. Conversion an exercise of control of a chattel which results in the deprivation of use of the entire chattel A. Elements 1. Deprivation of Use Depriving use, intentionally destroying, severe material alteration B. Defenses/Exceptions 1. Necessity A person may convert the chattel of another when they have a necessity to do so but will still be responsible for damages C. Remedies - nominal damages - compensatory damages

Negligence
Elements

1. Duty A. When A Duty Is Owed? (a judge ultimately decides when a duty exists and then the jury decides if the parties acted reasonably) - People in general have a duty not to act negligently, this is known as the RPS 1. General Reasonable Person Standard A person has a duty to act as a reasonable _________ would act under those circumstances. OR a person has a duty to act with reasonable care. 2. Alternatives Or Factors That Have Been Used in Determining Reasonableness A list of alternatives proposed the reasonable person test Fight Club Formula B < PL...says that if the Burden is less than Probability of Loss multiplied by the Magnitude of Loss, then the D is N. - Basically, If the estimated cost to prevent harm is less than what it would it cost if the harm actually occurred, the D is liable Sudden Emergency Doctrine Allows a person not to be held to a reasonable standard of care when a sudden emergency deprives them of time to contemplate the best reaction IF a) the party was not N prior to the harm b) the emergency came about suddenly c) the reaction was spontaneous People w/ Special Skills or Knowledge People who have special skills or knowledge are held to the standard of a reasonable person with their special skills or knowledge - What would the reasonable brain surgeon do? - What would the reasonable blacksmith do? Standard For Children Children are held to the standard of care that a reasonable child of the same age, maturity, experience and intelligence would exercise in that situation - Most courts will not apply this doctrine if a child put themself in a situation which is usually reserved for adults People with Mental Disabilities People with mental disabilities are held to the same standard as everyone else - people might fake mental disorders - removes liability of having to determine depth of the disability People with Physical Disabilities People with physical disabilities are held to a standard of care requiring them to act as a reasonable person with that specific disability would act - What would the reasonable blind man do? - What would the reasonable man with no arms and legs do? Recklessness Reckless is disguisable from N in that it requires the D to either know of a risk where harm was likely to result and then disregard the risk, or know of facts in which a reasonable person would recognize a risk and then disregard it B. Exceptions to the No Duty Owed Rule.......Affirmative Duties 1. Duty Owed in Special Relationships A duty to act or aid is not owed but may be owed where the parties have a specific kind of relationship. The legal reason for this is the element of control that one party has over another a) Carrier - Passenger

b) Shopkeeper - Guest c) Employer - Employee d) Landlord Tenant e) Invitor Invitee f) Parent Child g) Counselor Counselee h) Rescuer - Rescuee - In these relationships one party may have a duty to (a) protect people against unreasonable risk of harm AND (b) give them first aid after they know or have a reason to know that they are ill or injured 2. Duty Owed to Rescuers by Negligent Parties If a Negligent party creates a situation where they (or a 3rd party) must be rescued and a person who has no duty to do so rescues them, the Negligent party may be liable to them for the harm they incur. - A person can prove they were a rescuer by showing that (a) the D negligently caused the harm or appearance of harm to the person the rescuer was attempting to rescue (b) the harm was imminent (c) a RP would have concluded the harm existed (d) the rescuer acted with reasonable care - Good Samaritan laws often prevent rescuers from being held liable for attempting to help UNLESS (a) the rescuer did not exercise reasonable care (b) the rescuer discontinued aid after starting it

3. Duty Owed in Special Relationships in Protecting Third Parties A professional owes a duty to a third party when (a) Existence of a specific and immediate threat of serious injury that have been communicated to the party AND (b) The threat is made to a specifically identified 3rd party or a 3rd party may be subject to a foreseeable risk - Third party usually includes the person that the specific harm may happen to, or the immediate family...Not the public in general CA1) Violating confidentiality CA2) the fact that a professional is no better than anyone else in determining who is dangerous

C. Defenses/Exceptions to When a Duty Is Owed 1. When a P is Negligent as well as the D (Contributory Fault) In these jurisdictions, a P will not recover anything if D can prove that a reasonable person would have known of the risk - There are 6 states that use contributory negligence - Alabama - North Carolina - Maryland - Virginia - Washington DC Exceptions - If a D was R and a P was N then P recovers 100% - If both are R then neither gets shit Pure Comparative Negligence - (Florida)

Allows a contributorily negligent P to recover the % of the damages as long as the P and the D were both proximate causes (if P causes 75% of the harm, they only get 25%) - The damages will be reduced by whatever percentage the jury assigns to the Ps negligence. Modified Comparative Negligence - In some places a P can only recover if they were 50% or less negligent (Minnesota) - In other places a P can only recover if they were 49% or less negligent (Colorado) Unit Rule (majority) - Treats Ds %s as a whole unit and then compares it to the Ps % of negligence Wisconsin Rule (minority) - Compares each Ds individual negligence % against the Ps negligence %

Recklessness Find D liable if a Ps was negligent and the Ds disregarded a risk he should have been aware of. (gross negligence) Last clear chance If the P asserts it successfully, the P is allowed full recovery despite their own negligence (a) P by their own negligence placed themself in danger and could not escape it AND THEN (b) D saw, or by the exercise of reasonable care should have seen and understood, the perilous position of the P; AND (c) D had the time and the means to avoid the accident if D had seen or discovered Ps perilous position; AND (d) D failed or refused to use every reasonable means at her command to avoid impending injury to P; AND (e) P was harmed Assumption of Risk (Consent) Allows a D to not be held liable where a P has voluntarily accepted a risk 1. Express Assumption of Risk (Express Consent) Express AoR is when a P voluntarily assumes a risk by agreeing to take the risk. This is usually done in the form of waivers of liability. In analyzing AoR ask: - Does the agreement entered into violate the law? These factors help decide... (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation (2) the party seeking not to be held liable is engaged in performing a service of great importance to the public (3) that party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within the certain established standards (4) because of the essentials of the service, in the economic setting of the transaction, the party invoking the defense possesses a decisive advantage of bargaining strength against any member of the public who seeks the services (5) in exercising a superior bargaining power, the party confronts

the public with a standardized adhesion contract of defense, and makes no provision where a purchaser may pay additional reasonable fees and obtain protection against negligence (6) the person or property of the members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. - Can the waiver be enforced? Waivers must be clear concise, and the person signing them must have done so in a knowing, informed and voluntary manner

2. Implied Assumption of Risk (Implied Consent) A. Primary Implied Assumption of Risk (no duty owed, no breach of duty) This may be invoked by a D who has eliminated all reasonable risks to show that there was no duty owed b/c a) the harm was unforeseeable b) the risk taken was an necessary and inherent risk of the sport or conduct B. Secondary Implied Assumption of Risk (defense) In cases where D was negligent and created an unnecessary risk, they can bar recovery of a P by showing that (a) P had subjective knowledge of the risk (Ds negligence) AND - D must prove P had knowledge of the risk (b) had subjective appreciation of its nature and extent AND (c) voluntarily accepted it (the risks of Ds negligence) - different from cont. negligence in that this is usually for more reasonably taken risks whereas cont. negligence is for unreasonable risk Firefighters Rule Denies recovery of harm incurred by a police offer, firefighter etc. for negligent conduct of a D while acting within the scope of their pre-existing duties. - They may recover if the harm was incurred during a routine inspection or from circumstances that are not typical to the jarb

Mitigation & Avoidable Consequences Courts may be less likely to grant judgment for a P if the P did not act reasonably to prevent the harm that occurred or did not take steps after the harm occurred to prevent further harm from occurring.

Immunities 1. Sovereign Immunity FTCA Allows the US to be liable for a) injury of loss or property b) personal injury or death caused by a) a negligent act or omission of any employee of the government b) while acting within the scope of their employment IF a) a private person would be liable according to that jurisdictions law b) the negligent acts involve discretion in how they are performed - not by statute or law c) the negligent judgment is of their own choice and not governed by law or public policy 2. Intrafamilial Immunity

- In most places, a husband and wife can bring civil suits against one another - In parent-child relationships, most js only allow recovery if the parent has failed to act as a reasonable parent would act Statutes of Limitation & Repose Statute Of Limitation Limits the time in which a P may bring suit after becoming aware of it Discovery Rule The statute of limitation does not start until the P is put on notice that someone may have caused her injury UNLESS 1) The P should have known through reasonable diligence about their cause of action OR 2) there is fraudulent concealment of the right to action. People with Disabilities For people with disabilities the SOL may be longer Repose Bars a Ps suit if not brought within the statutory period in which it happened, this trumps the SOL... IF a person discovers they have a claim 9 years and 364 days after it happened and the SOR is 10 years, they are pretty much shit outta luck 2. Proving the Breach of Duty ( P must prove more likely than not ) Breach of a duty is proven when you can show that the D did not act in accordance with how a reasonable person would act under the circumstances. - Proving breach of a statute does not prove causation, A. Ways to Prove the Breach of a Duty 1. Show they Did Not Use a Reasonable Standard of Care 2. Show they Breached A Statute Negligence Per Se When proving breach you can show that a person breached a statute and therefore failed to act how a reasonable person would act b/c a reasonable person would not violate a statute. In establishing Negligence Per Se you must show that the P (a) was a member of the class that the statute which was violated was designed to protect (b) and the harm suffered was the type the statute intended to prevent - Look closely at the intent of the public policy to determine, anti-smoking laws are not designed to prevent forest fires, anti-littering laws are not designed to prevent drainage ditches from stopping up and flooding a house, driving without a license is not designed to prevent car wrecks... - Where compliance with a licensing statute would prevent the occurrence of dangerous conduct because of requirements to get that license, the court may find liability - If a statute leaves judgment open as to how a person should act then show that they failed to act as a reasonable person would - In cases where statutes require specific conditions to be met as in building codes, notice of the defect is required in order for the LL to be held liable 3. Show they Breached Industry Custom - Evidence of an industry custom might be introduced to show that an actors failure to follow it amounts to negligence or might be introduced to show that conduct in conformity with custom meets a standard of reasonable care. - HOWEVER, in cases where industry custom is more careful or reaches farther than the law, they cannot be held legally liable for violating that regulation 4. Show they Breached a Duty Circumstantially (Red Sticky Liquor) The jury will be allowed to conclude that the D was negligent even though the P may not have introduced detailed or direct evidence about the precise shortcomings off the Ds actions

- allows P to say D was negligent even if they dont have sufficient evidence. (a)The type of injury caused in the type that usually happens when someone is negligent - basically, an inference of negligence (b) The defendant had exclusive control of whatever caused the injury - like if its on the malls property then they had control - 3rd parties having access does not preclude exclusive control (c) The plaintiff had made no causal contribution to the negligent act (d) Explanation as to the type of harm that occurred could be told better by the D than the P C. Defenses/Exceptions 3. Causation ( must prove its more likely than not ) A. Proving IFFE HADNT Causation P must prove the Ds conduct more likely than not caused the harm by saying IFFE HADNT of done X, then Y would not have happened. Alternatives to Proving IFFE HADNT Causation - In cases where more than one actor may have caused the harm, or in cases where it is unclear who caused the harm, these alternatives may be supplemented in place of IFFE HADNT analysis. - Once the P demonstrates that each of the Ds acts could have caused the harm, each D must prove that they did not cause the harm 1. Multiple Sufficient Causes (conduct by each D could have caused harm) - In cases where two parties are negligent individually, and each act may individually have been sufficient to cause the Ps harm, the 2 parties causing the acts will be liable for the entire damages. If one of the parties causing the harm is unidentified, then the burden falls on the known party to identify the other, if they cannot, then that party is SOL. - This doctrine prevents each of the tort-feasors from escaping liability by blaming the other when it cannot be shown that either party was an IFFE HADNT cause. - A D will not be liable if he can show that a) at least one of the causes was non-tortious OR b) their own cause was not a substantial factor in bringing about the harm - not applicable where only one person acts tortiously 2. Concert Of Action (conduct of all Ds combined to produce harm) Allows the P to recover from multiple Ds An actor may be liable if they (a) Commits a tortious act with another to a common goal(less of a coincidence) (b) Knows the others conduct breaches a duty but gives substantial encouragement or aid (c) gives substantial assistance to the D, and D2s conduct breaches a duty to the P - not applicable where only one person acts tortiously 3. Alternative Liability (harm caused by only one or some but not all) (more of a coincidence) - Shifts the burden to the Ds in cases where the P cannot prove which one, specifically, caused the harm. All Ds engaged in negligent conduct, all Ds were included in the suit, all Ds conduct presented the same risk of harm...P must prove that (a) 2 or more Ds acted negligently and presented the same risk of harm as the other (not necessarily caused the harm but could have) and P cannot identify which one AND - each would be D must be present in the lawsuit and then burden would fall on them to prove they did not cause the harm (b) P was injured as a proximate result of the wrongdoing of one of the Ds - The burden then shifts to the D to show that he was not liable - not applicable where only one person acted tortiously - 100% of damages may be collected from only one party - Applies to all types of products 4. Market Share Liability (Modified Alternative Liability)

In cases where multiple Ds could have caused the harm they will be liable for their % of the harm as determined by their current % of the market...Usually only applied to cases involving dangerous products -Elements of Market liability (a) harm is associated with the fungible (identical type product) made by all the Ds joined in the lawsuit (all parties need not be present) and P cannot determine which one - All companies must have presented the same risk, in order for them to present the same risk the products must be within a range of similarity of ??? % (argue it, 20% was close enough in one case but 70% was not) - if Ds do not present the same risk you cannot use MSL - D will not be liable if they can prove they are not in that market shares jurisdiction (D didnt sell to the state of Georgia, Saying they didnt sell to Walgreens for example will not help), prove they didnt sell drugs to pregnant women, etc. - Several liability applies in that they only responsible for their market share % - must have a substantial # of Ds joined in lawsuit but not all (b) injury or illness due to a design hazard, with each having been found to have sold the same type product in a manner that made it dangerous (c) ability to identify the manufacturer that brought about the harm (d) joinder of enough of the manufacturers to represent a substantial share of the market 5. Liability for Lost Chance of Recovery (harm has occurred) Percentage Approach (Majority) Under this approach the negligent party is responsible for the % amount they reduced their likelihood of survival by TIMES the full amount of recover (% Reduced x Full amount) - prove not that they caused their death but that they reduced their chance of recovery - for our class if the doctor caused a % decrease of recovery greater than 37.5% they will be liable All or nothing Rule (Minority) If a D is liable for their negligent conduct they are liable for 100% of the damages - if a P came in with a 51% chance to live and then the Ps negligence reduced their chance to live they did not recover the D is liable for all of it. - If a P came in with a 49% chance to live and the Ds negligent conduct reduced their chance to live the D will not have to pay 6. Liability for increased Risk of eventual Harm (harm has not yet occurred) In cases where the D has acted tortiously they are liable for the % likelihood that the future harm could occur (% likely x Full Amount) C. Proximate Causes A proximate cause reflects the idea that there must have been some sort of connection between the Ds conduct and the Ps harm. 1. Direct Cause Test An act that is a cause-in-fact of an injury will be treated as a proximate cause of the injury if there are no intervening forces between the Ds act and Ps harm (or if it is not too remote) - foreseeability is ignored in this test When Analyzing Intervening Cause An act will be treated as an intervening cause if it is unforeseeable considering the circumstances. With respect to the direct cause test, an intervening cause would likely be a cause of series of causes that were ridiculously unforeseeable under the circumstances considering the zone of risk created by the negligent conduct, thus excluding the D from liability because his Negligent act was too remote to hold him liable 2. Substantial Factor

- If, looking back from the harm to the actors negligent conduct, it appears that it was highly unlikely in bringing about the harm, the actors conduct will not be considered a legal cause -When considering a D causation look at (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether actors conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm; or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time; BUT (d) where it is evident that the influence of the actors negligence is still a substantial factor, mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of the harm When Analyzing Intervening Cause Just because an act is intervening does not mean it is superseding. In analyzing superseding causes under the substantial factor test, a superseding cause will basically be any cause that is much more of a substantial factor than the Ds conduct or conduct that is completely outside the zone of risk created 3. Foreseeability (reckless liability) (no duty and limited duty rules limit this test) In order to qualify as foreseeable the Ds negligence must be (a) a but4 cause of the accident AND (b) the type of harm caused was a reasonably foreseeable consequence of the Ds negligent conduct - (b) is the same as whether the harm was within the scope of danger created by the Ds negligence - It is not necessary that the defendant foresee the exact sequence of events which led to the accident sued upon; it is only necessary that the general type of accident which has occurred was within the scope of danger created by the defendants negligence, or stated differently, it must be shown that the said general type accident was a reasonably foreseeable consequence of the defendants negligence. was reasonably foreseeable, whether or not sequence of events was. Foreseeability of the type of harm is what is being tested. -The negligent D is liable for the resulting harm even if the P is particularly sensitive to the circumstances. Like intentional torts, the D does not have to be aware of the sensitivities to be found liable for the harm resulting. Keep in mind it is the type of harm caused, not the extent of harm caused. When Analyzing Intervening Cause A superseding cause would basically be any type of harm that occurs that is unforeseeable under the circumstances or outside of the type of risk created by the negligence D. Intervening and Superseding (canceling) Causes 1. Superseding (canceling) Cause (will ultimately be up to the jury) -An act is not superseding if (a) It is a normal response to a negligent act that is reasonably foreseeable and a substantial factor in bringing about harm OR (b) it was foreseeable OR (c) the intervening conduct could have been anticipated and taking the risk of that act was unreasonable 2. Negligent Treatment of a Ps Injury as Superseding Cause -As long as the subsequent harm is within the scope of the original known negligent conduct (even if that harm is ridiculously unlikely), then regardless of time or subsequent injuries the original tort-feasor is still liable.

- Negligent acts by a third party do not constitute superseding cause

4. Damages Make sure you show that damages occurred even if its crazy obvious